A discussion about issues, appellate decisions, and other news of interest to Kansas defenders. This site does NOT necessarily reflect the opinion or position of the Appellate Defender Office or of the Kansas Board of Indigent Defense Services. Nor does this in any way constitute legal advice or is it even warranted to be remotely accurate! It is intended to be a resource for Kansas defenders and others interested in the criminal justice system in Kansas.

Thursday, January 29, 2009

Here and here are a couple of Emporia Gazette articles reporting that Judge Wheeler granted a motion for change of venue and also substantially restricted the state's evidence in a Lyon County felony murder prosecution after remand from the Kansas Supreme Court in State v. Carapezza and State v. Hughes.Here is a transcript of the district court's ruling posted on the district court's web site.

This case is back in district court after the KSC reversed felony murder convictions based on improper admission of evidence as blogged about here. The KSC ordered new Kastigar hearings on remand, which resulted in the latest order.

[Update: here is an Emporia Gazette article reporting that the state plans to appeal Judge Wheeler's Kastigar ruling.]

[Further update: here is an Emporia Gazette article reporting that Judge Wheeler set $40000 bonds pending the appeal for both co-defendants.]

Washburn student intern Star Jones and I won in State v. Branstetter, No. 98,884 (Kan. App. Jan. 23, 2009), reversing some Sedgwick County drug convictions on Fourth Amendment grounds. The case involved whether state proved the legality of an impoundment search. The state argued that the search was performed pursuant to a police "policy" and, in any case, that under a recent KSC case, officers did not have to seek alternatives to impoundment by the driver/owner. The COA disagreed, holding (1) that the state failed to provide evidence of the actual policy and (2) that the failure to inquire into alternatives to impoundment, although not dispositive, was still part of the totality of circumstances to be considered:

The totality of the circumstances here—i.e., the vehicle was not "unattended," illegally parked, or obstructing traffic—does not permit us to disregard the officer's failure to consider permitting the passenger to drive, to consult Branstetter, or to attempt to contact the registered owner regarding disposition.

Essentially, the State seeks to rely upon an unwritten and unproduced "policy" as carte blanche authority permitting the State to impound a vehicle when the registered owner is not present and the operator is arrested. The State would implement this policy without regard to (1) the wishes of the operator or the owner; (2) whether a passenger may be present to attend to the vehicle; and (3) whether the vehicle presents a safety or traffic hazard. The State's rationale would eviscerate the "reasonable grounds" test established in Fortune and the "totality of the circumstances" analysis espoused by Teeter.

The COA also held that the record supported a claim that the inventory search in this case was pretextual, bolstering its conclusion on the Fourth Amendment issue.

[Update: the state filed a PR on February 23, 2009.]

[Further update: the KSC denied the PR and the mandate issued on September 14, 2009.]

In its brief, the State argues that there was reasonable suspicion to support Besenyi's decision to pull the car over. Specifically, the State notes that Besenyi received information that the owner of the residence, where the car had pulled into the driveway, had reported receiving threats that tribal property, which was stored on his property, would be stolen in the future. In addition, the owner had complained about people pulling into his driveway and using drugs. The owner asked police to check on cars that pulled in and out of his driveway during late evening hours. Because Besenyi saw the car's driver (which did not belong to the owner of the residence) pull into the driveway and then back out, the State argues that this gave Besenyi reasonable suspicion to pull the driver of the car over and investigate whether the occupants of the car were involved in a possible burglary or using drugs.

. . . .

The problem with this argument is that the actions taken by the driver negated any reasonable suspicion Besenyi may have had that pointed to the occupants of the car being involved in drug use or a possible burglary of the residence. The car's driver pulled into the entryway of the driveway and stopped; the driver did not drive up to the house. Then, a minute later, the driver backed out of the driveway and continued driving east, the direction the driver had been traveling before pulling into the driveway. Simply stated, the car's driver did not stay parked in the driveway long enough to create any sort of reasonable suspicion that the occupants were preparing to burglarize the residence or stopped in the driveway so they could use illegal drugs. Because such a brief moment of time passed between the driver pulling into the driveway and backing out, Besenyi was not justified in thinking that the occupants of the car were committing, had committed, or were about to commit the crimes of burglary or illegal drug use.

[Update: the state did not file a PR and the mandate issued on February 19, 2009].

Wednesday, January 21, 2009

Kansas v. Ventris was argued this morning. (Pictured above from l-r: Matt Edge, counsel of record who argued the case, Randall Hodgkinson, who co-authored the merits brief and was at counsel table; and Carl Folsom, who lost his ID while going through security, but still talked his way into the section of the courtroom for admitted attorneys).

The Court was somewhat cold, and it was hard to judge how the Court is leaning (I don't think Souter or Kennedy asked a question). The transcript is available by now, but my quick thought is that the important point is whether the Sixth Amendment violation occurs during the illegal interrogation (by the snitch) or if the violation is when the evidence is admitted at trial for impeachment. Scalia seemed hesitant to encourage a constitutional violation (admitting the evidence at trial) just to prevent possible perjury. Alito specifically asked when the violation occured, as did another Justice.

[Update: on April 29, 2009, the SCOTUS reversed the KSC 7-2 and remanded for futher proceedings].

[Further update: here is some commentary by Professor Michael Mannheimer on the SCOTUS decision].

[Further update: here is more commentary by Professor Sherry Colb on the SCOUTS decision].

Tuesday, January 20, 2009

This is Randall and me on a very cold inauguration morning. We actually ended up a lot closer to the ceremony than we were in this picture. After the inauguration, we went to the Smithsonian air & space museum. But, so did the masses. The museum ultimately served as a place for many to get out of the cold, use the bathroom, eat McDonalds, and nap. I literally had to step around people who were sleeping on the floor as I toured the exhibits.

Sunday, January 18, 2009

As blogged below, Kansas Defenders will be in Washington DC this week for the Ventris argument and Obama's inauguration. This post details my odyssey on the bus from Lawrence, KS to Washington.

Part 1

St. Louis 6:00 pm Sunday

This is the line to transfer buses in St. Louis. We were delayed because of a traffic accident; so no time for dinner or finding tylenol for my headache. I've already met some very nice people on the trip, three of whom are also going to the inauguration. They've been on the bus since Los Angeles. Four days each way for them. They must really love Barack Obama.

Now, it's off to Indianapolis, with stops in Effingham, IL (where my mom earned her college degree) and Terre Haute, IN (where I once excelled in a pinewood derby competition). Maybe by the time we get to the Wabash, the kid in the back of the bus will stop screaming.

(Update- I was able to score McDonalds in Effingham, the cure for hunger and headaches)

Part 2

Columbus, OH. 5:00am. Monday

I just had a nice conversation with a professor from Howard University. He earned his doctorate from Georgetown and currently teaches world diplomacy at Howard. He described how he has tried to emulate Dr. King (he earned his undergrad degree at Morehouse- same as Dr. King). All in all, a good person to sit next to on a bus headed for DC on Dr. Martin Luther King Jr. Day (to watch the first black president be sworn in no less). He did make me laugh when he said he doesn't think he could have handled law school (which he said before he knew I was a lawyer).

Part 3.

Monroeville, PA. 10:00am

Our bus broke down for the second time. Apparently, there is something wrong with the air brakes. We tried to "push on", but I guess brakes are important. We have to wait for a replacement bus.

Here is a picture of the broken-down bus.

Part 4

Union station, DC. 6:00 pm

The crowd inside Union Station was crazy. The escalator was quickly unloading everyone into a crowd of people, and there was no room for anyone to move. It got pretty hectic. Eventually, a transit worker stepped up and wouldn't let people get on the escalator, but not before it threw Jeremy Schaap of ESPN into me.

Washington DC is the place to be this week, and Kansas Defenders will be there. Matt Edge (ADO) will argue in the Supreme Court in Kansas v. Ventris, and there is the historic inauguration of Barack Obama.

Randall is already in DC, as he will be second chair in Ventris. I, on the other hand, wrote this blog post from my window seat on a crowded Greyhound bus. I hope to get to DC eventually, and attend the inauguration and the Ventris argument. I will try to blog along the way.

Saturday, January 17, 2009

Kerry E. McQueen and Stephen C. Griffis won in State v. Prine, No. 93,345 (Kan. Jan. 16, 2009), obtaining a new trial in a Finney County statutory rape case. The KSC reversed because of improper admission of prior bad acts pursuant to K.S.A. 60-455. The KSC held that intent nor absence of mistake or accident were not at issue in the statutory rape case and therefore the prior bad acts could not be admitted on those bases. The KSC went on to discuss in some detail the plan basis for admission of such evidence:

We hope and expect that future analytical consistency in these especially wrenching cases can be improved and maximized if we settle on uniform language to describe the degree of similarity that must exist before a district judge admits evidence of prior bad acts to prove plan or modus operandi under K.S.A. 60-455. We regard the standard of "so 'strikingly similar' in pattern or so distinct in method of operation as to be a 'signature' to be the most sound and will apply it exclusively when the State's admission of K.S.A. 60-455 evidence to prove plan is challenged on appeal. We believe this standard gives appropriate deference to the current legislative choice of language in the statute, language plainly selected to disallow evidence of prior bad acts admitted only to show propensity to commit a charged crime or crimes. Withoutsuch a standard, one with identifiable meat on its bones, the line between mere propensity evidence and plan evidence is simply too thin for this court–or any court–to traverse predictably or reliably.

As mentioned above, this standard governs examination of whether particular evidence has probative value, one of the two components of relevance, as outlined in Vasquez. If a defendant's prior bad act is so strikingly similar in pattern or so distinct in method of operation as to be a signature, then it is probative of defendant's plan in the case at bar. If it is not, then the evidence has no probative value on plan and the evidence is irrelevant if offered for that purpose. On appeal, we will review a district judge's decision under the "signature" standard for an abuse of discretion.

Turning to a comparison of the evidence of prior bad acts admitted to prove Prine's plan here, we note that all three crimes are similar in the approximate ages and the gender of the victims. However, the specific sex acts among the victims differed. A.M.C. described discrete events of three types. S.M. described two other types of activities. The account of J.J.S. bore some similarity to one of the activities in which defendant engaged with S.M. and some similarity to a different behavior described by A.M.C. Under the signature standard we have set forth, even in light of the deferential abuse of discretion standard of appellate review, it was error to admit the evidence of Prine's prior bad acts with S.M. and J.J.S. to prove plan in the trial ofA.M.C.'s allegations.

The KSC went on to hold that, given the lack of physical corroborating evidence, the improper admission of prior bad acts was not harmless and reversed.

Thursday, January 15, 2009

Here is a Topeka Capital-Journal article noting that the governor issued a pardon in a DUI case, allowing a businessman to travel to Canada. The article indicates this is Sebelius' first pardon. I do not think Graves ever granted a pardon or commutation petition.

The Shawnee County Commission is asking the Attorney General to investigate outgoing-DA Robert Hecht for the way that he has been paying himself for appellate work. Here is an article from the Topeka Capital-Journal. The article states that Hecht made $245,231.19 last year, and $127,275 of that was for the appellate work that he did.

Here is a follow-up article in the Topeka Capital-Journal reporting on previous DA's practices.

[Update: here is another follow-up article detailing some of the amounts for which Hecht submitted claims.]

Wednesday, January 07, 2009

Dan Biles of Overland Park was picked today to become the newest member of the Kansas Supreme Court. Gov. Sebelius made the announcement at an 11:00 press conference. Here is the LJ World's coverage of the governor's selection. Here is coverage in the Topeka Capital-Journal. Here is the governor's press release.

Biles is best known for representing the State Board of Education in a lawsuit that forced an increase in school funding. The vacancy on the court was created by the upcoming retirement of Chief Justice Kay McFarland. The short list for the vacancy (blogged about here) consisted of Biles, Court of Appeals Judge Thomas Malone, and Douglas County Judge Robert Fairchild.